Each year, the Legislature closes up shop in early May, but it isn’t until mid-July, after the deadline passes for the governor’s vetoes, that the dust finally settles and the public can see what changes have been wrought in Hawai‘i’s legal system.
This year’s crop of environmental bills included ones relating to invasive species, long-range planning, energy, solid waste, wastewater, land conservation, public ac cess, recycling, and Land Board member ship, among other things. Governor Linda Lingle signed 10 of the bills reviewed here into law and let seven more become law without her signature. She vetoed three more environmental bills; all three became law when the Legislature overrode the ve toes in its special session held July 12.
“On balance,” says Jeff Mikulina, execu tive director of the Sierra Club, Hawai‘i chapter, who closely tracks bills as they move through the session, “I think it was the best session I’ve ever seen.” Not only did the Legislature enact big environmental measures, but, he added, “there was a good smattering of little things, too.”
What follows is a short synopsis of several of the environmental bills passed by the 2005 Legislature.
Signed into Law
LAND BOARD QUALIFICATIONS: ACT 9
This law (formerly Senate Bill 1680) re quires at least one member of the state Board of Land and Natural Resources to have a formal grounding in conservation, as evidenced by a college degree in a relevant field (such as forestry, environmental sci ence, marine biology) or by “work history sufficient to demonstrate an appropriate level of knowledge in the subject of land and natural resources.” The act took effect on the day it was signed – April 18, 2005 – and applies to any new appointments and reappointments made after its effective date. The current board membership includes Tim Johns, whose background could meet the qualifications. His term expires June 30, 2006. After that, Governor Lingle will have to appoint someone specifically to fill the new requirements.
HELP WITH COQUI: ACT 51.
This appropriates $300,000 to the four counties to assist in the control of the noisy coqui frog, over and above appropriations to the Hawai‘i Invasive Species Council. O‘ahu and Kaua‘i are to receive $50,000 each, while Maui and Hawai‘i counties will receive $100,000 each.
PEST INSPECTIONS: ACT 64
This law (Senate Bill 956) amends existing statutes to require the state Department of Agriculture to adopt rules designating or ganisms whose import into the state will require the department’s specific advance approval. It also authorizes the DOA to adopt rules requiring bills of lading and warehouse receipts, among other shipping documents, to identify articles deemed to be of high risk for carrying possible pest organisms.
ELECTRICITY SELL-BACK: ACT 104.
At present, electric utility customers who generate their own power and sell a portion back to the utilities are limited to 50 kilo watts of capacity. This law (Senate Bill 1003), allows the Public Utilities Commis sion to lift that ceiling through the rule-making process. It also specifies that credits for generated power that are not offset by consumption do not carry over past a 12-month period.
DUMPING PENALTIES: ACT 106.
This act (House Bill 1430) specifies that dumping an amount equal to or greater than one cubic yard of solid waste, but less than 10 cubic yards, qualifies as a petty mis demeanor punishable by up to $25,000 for each separate offense, a jail term of up to 30 days, or revocation or suspension, if ordered by a court, of any contractor’s license or certificate from the Public Utilities Commis sion. Each day of violation counts as a sepa rate offense.
INCREASED MOORING FEES: ACT 126.
Under this act (Senate Bill 1891), fees paid to the state Boating Special Fund by commer cial vessels that moor in the state’s small boat harbors rise to 3 percent of gross revenues or twice the assessed moorage fees, whichever is greater. Previously, the percentage rents were fixed by the Department of Land and Natu ral Resources at 2 percent.
ENVIRONMENTAL APPEALS: ACT 130.
House drafts of House Bill 408 gave the Office of Environmental Quality Control the ability to review an agency’s determina tion that a project it was proposing would have no significant environmental impact. This arose in response to long-standing com plaints that agencies are inherently conflicted when they are in the position of judging the adequacy of the environmental review that they (or their contractors or consultants) prepare for projects they wish to undertake.
The bill passed the House, but the Senate gutted the bill and replaced it with a series of definitions of elements of waste-water treatment and collection systems that the Senate Committee on Energy, Environ ment, and International Affairs said was needed to clarify 2004 amendments to Chapter 343, the state’s environmental dis closure law.
The House of Representatives did not accept the changes, and the bill went to conference. There, the language approved by the House was restored in a slightly watered-down version, the expansive defi nition section of the Senate bill was elimi nated, a “findings” section was included, and the term “wastewater facility” was changed to “wastewater treatment unit.” This last change, says the Conference Com mittee report, should clarify that the 2004 act “was not intended to include only a portion of an existing facility…. [T]he leg islature finds that the term ‘wastewater treatment unit’ is a more appropriate de scription of the type of new project that would trigger an environmental review pro cess.”
LEGACY LANDS: ACT 156.
This establishes a fund to acquire lands, assist with affordable housing, and give the Natural Area Reserves System additional resources. (See separate story.)
SOLAR ENERGY: ACT 157.
Under this act, owners of houses and townhouses are allowed to install solar en ergy devices without the approval of their respective homeowners’ or condominium owners’ associations, although they would have to be notified of such installations.
The act also requires the associations to adopt rules by June 30, 2006, governing solar energy installations. As originally in troduced, House Bill 1017 would have re quired all new housing units to include solar water heating systems. That language dropped out before the measure left the House.
NO GOLF ON AG LANDS: ACT 205.
This measure (House Bill 109) bans the construction of any new golf course on land in the state Agricultural District, but allows them as permitted uses on lands in the state Rural District. The first draft of the bill would have specified that residences in gated communities, communities with golf courses or private clubs, and subdivisions with covenants restricting agricultural ac tivity would be presumed not to be farm residences permitted under the state’s Land Use Law. This was in direct response to the development of luxury residential subdivi sions on much agricultural land (such as the Hokuli‘a subdivision in Kona). Environ mental groups generally supported the bill, as did other state agencies, including the Office of Planning. Testimony in opposi tion was submitted by the Hawai‘i Associa tion of Realtors, the Land Use Research Foundation, the Hawai‘i Resort Develop ers Conference – and Peter Young, on be half of the state Department of Land and Natural Resources. Although the bill did not address any matter affecting Young or his department, Young, a former real estate agent, said in testimony before the Senate Committee on Water, Land, and Agricul ture, that he favored “a more comprehen sive approach” to safeguarding Hawai‘i’s agricultural lands.
BOTTLE BILL AMENDMENTS: ACT 206.
Cruise ships, airplanes, and other “com mercial passenger vessels” need not comply with the state bottle-deposit law, so long as they have a recycling plan and have filed a copy of the plan with the state Department of Health. The act, formerly House Bill 1015, also allows redemption centers to ac cept flattened aluminum cans for refunds.
Enacted without Signature
SHARKS: ACT 233
This appropriates $25,000 to the Depart ment of Land and Natural Resources, which is to be used in conjunction with the Uni versity of Hawai‘i’s Hawai‘i Institute of Marine Biology to develop a program to tag and monitor sharks along the leeward coast from Pearl Harbor to Ka‘ena Point. This measure, introduced as Senate Bill 1267, addresses concerns voiced by some fishers in the area that shark populations were in creasing as a direct result of the presence of open-ocean aquaculture in the area. In her statement of concerns, Lingle said that the amount appropriated was not nearly enough and that, in any event, the presence of sharks was a sign of a healthy marine ecosystem.
MILOLI‘I FISHING: ACT 232.
Senate Bill 1883 establishes the Miloli‘i Fish eries Management Area as a community subsistence fishery management area and directs the DLNR to promulgate rules that will protect the community’s traditional fishing practices. Lingle said she objected to the bill doing an end-run around the DLNR’s administrative rule-making procedures.
REVERSE VENDING REBATES: ACT 228.
Senate Bill 212 authorizes the Department of Health to offer beverage container re demption centers up to a total of $3 million a year in rebates to offset the cost of purchas ing reverse vending machines. Individual centers could qualify for $30,000, $60,000, or $90,000 a year in rebates, depending on the size of their operations.
BOTTLE BILL UPDATE: ACT 227.
Senate Bill 680 orders the Department of Health to facilitate information-sharing be tween beverage-container manufacturers and redemption centers, especially with re spect to bar-code information that can be read by reverse-vending machines. In her statement of concern, Lingle said it was both “inappropriate and unfortunate that the state is being burdened with this duty.” She con tinued: “This requirement is indicative of the poor thought given to the original pro gram and the failure to recognize that con tainer recycling would work better if left to the private entities involved.”
COASTAL LIGHT POLLUTION: ACT 224.
House Bill 895 prohibits the use of artificial lights to illuminate the shoreline and ocean waters for “decorative or aesthetic purposes.” Some exceptions are allowed for hotel and condominium lighting, and for public-safety purposes. Among Lingle’s concerns: that the science showing the lighting confused migratory sea turtles and birds was “mixed,” and that the measure impinged on land owners’ ability to light their shoreline resi dences as they might like to.
OUTRIGGER CANOE STORAGE: ACT 220.
House Bill 125 allows outrigger canoes belonging to clubs registered with the Hawaiian Canoe Racing Association to be stored on state shorelines at no charge. The clubs have to agree to hold the state harmless and, if requested by the state, to procure sufficient insurance. They also have to place the canoes in areas where they do not interfere with other beach users, and must comply with all applicable county and state permitting requirements. Lingle’s state ment of concern said that technically, the bill limited the canoes to being stored below the high-water mark, which defines the upper limit of the state shorelines – and obviously contrary to what the bill’s au thors intended. She also objected to the bill’s lack of provision for county indemni fication in the event canoes are stored on county shorelines.
CRUISE SHIP POLLUTION: ACT 217.
House Bill 422 sets standards for waste water discharges by cruise ships in state waters, prohibits operation of cruise ship incinerators while the vessels are in port, and sets standards for stack emissions by such vessels. In her statement of concern about this bill, Lingle said that the existing memorandum of understanding between the state and cruise ship operators provided for generally higher operating standards. (The MOU is, however, unenforceable.) But some in the environmental community see this bill as practically worse than nothing. Jeff Mikulina, director of the Sierra Club, Hawai‘i Chapter, notes that it’s ques tionable if the state can regulate wastewater discharges from cruise ships without an act of Congress (such as Alaska obtained). “This is just a stratagem to say it’s a done deal,” he said, referring to regulation of cruise ship pollution.
Veto Overrides
WAI`ANAE COAST: ACT 6,
SPECIAL SESSION.
As recent, protracted meetings of the Board of Land and Natural Resources have shown, the Wai‘anae Coast is having to deal with increasing commercial use of its harbor and offshore areas. Senate Bill 1262 forbids the Land Board from issuing any new permits to commercial tour operators and calls for the Department of Land and Natural Re sources to prepare a baseline environmental study preparatory to establishing by rule an Ocean Recreation Management Area for the region.
Lingle vetoed the bill. Although she sup ports establishing an ORMA for Wai‘anae, she said in her veto message, Senate Bill 1262 would “set a negative precedent by requiring the Department of Land and Natural Resources to prepare a regional baseline environmental study seemingly modeled along the lines of an environmen tal impact statement before an ORMA is established.”
When the Legislature met in its override session on July 12, this was one of 12 vetoes it overturned. The new law requires the DLNR to deliver the baseline environmen tal study to the Legislature no less than 20 days before the start of its 2007 session.
OFFICE OF PLANNING: ACT 12,
SPECIAL SESSION.
For two years, the state Office of Planning, which is part of the Department of Busi ness, Economic Development, and Tour ism, has been effectively reporting to the head of the Department of Land and Natu ral Resources under a reorganization ef fected by Lingle but not authorized by the Legislature.
This year, the Legislature passed Senate Bill 1877, which included language specify ing that the Office of Planning was not to report to “any other principal executive department” other than DBEDT. The bill also made the position of director of the office subject to Senate confirmation.
In her veto message, Lingle described the bill as “objectionable because it limits my administration’s flexibility in executing pro grams and functions to achieve maximum results.” Her administrative directive in structing the Office of Planning to report to Peter Young, head of the DLNR, “has re sulted in meaningful, productive, and suc cessful undertakings in land use planning issues.” Lingle also described as objection able the proposed requirement for Senate confirmation of the office’s director.
The Legislature overturned the veto.
SUSTAINABLE PLANNING: ACT 8,
SPECIAL SESSION.
Senate Bill 1592 called for the Legislative Auditor’s office to develop a “Hawai‘i 2050 Sustainability Plan,” growing out of recom mendations from a Hawai‘i 2050 Task Force. Among other things, the task force and auditor were to review whether the current Hawai‘i state plan – last updated in the early 1990s – was in need of amend ment.
Lingle’s veto message indicated she ob jected to giving the task of planning to the Legislative Auditor, inasmuch as planning lies outside the scope of the auditor’s work. In addition, “this bill would appropriate $200,000 to the Auditor but provides no monies to the Office of Planning that is responsible for comprehensive long range and strategic planning.” (Lingle’s own bud gets have failed to give the Office of Plan ning funds needed to review existing state plans, even though Chapter 225 calls for updates at least every five years.) The Legis lature overrode the veto on July 12.
— Patricia Tummons
Volume 16, Number 2 August 2005